Wednesday, February 15, 2012
Paul F. Rothstein (Georgetown University Law Center) has posted Response Essay: Some Observations on Professor Schwartz's 'Foundation' Theory of Evidence on SSRN. Here is the abstract:
Professor David Schwartz's A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be "case-specific, assertive, and probably true." His shorthand for the tripartite requirement is that evidence must be "well founded." Hence, he calls his theory the "foundation theory of evidence" and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges' rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter.
This response essay addresses two of Schwartz's most intriguing and central contentions: (1) that almost all evidence must be "case-specific," "assertive," and "probably true"; and (2) that scholars who say there is no such thing as conditional relevance - that it is an incoherent concept - are wrong: conditional relevance exists and is widespread. The two are linked in Professor Schwartz's view because it is the tripartite requirement in (1) that often make evidence "conditionally relevant" as asserted in (2) - that is, irrelevant unless something is shown to establish that it complies with the elements of the tripartite requirement.